Maness v. Bullins

198 S.E.2d 752 (1973) 19 N.C. App. 386

Larry Edward MANESS
v.
Ronald Clyde BULLINS and Clyde Columbus Bullins.
Daniel Alexander MANESS, Jr.
v.
Ronald Clyde BULLINS and Clyde Columbus Bullins.

No. 7319SC612.

Court of Appeals of North Carolina.

September 12, 1973. Certiorari Denied November 1, 1973.

Ottway Burton, Asheboro, for the plaintiffs.

Coltrane & Gavin, by W. E. Gavin, Asheboro, for the defendants.

Certiorari Denied by Supreme Court November 1, 1973.

BROCK, Chief Judge.

These cases have been tried before a jury three times. After the first trial, upon appeal by the plaintiffs, this Court ordered a new trial. Maness v. Bullins, 11 N.C.App. 567, 181 S.E.2d 750 (1971). After the second trial, upon appeal by the plaintiffs, this Court ordered a new trial. Maness v. Bullins, 15 N.C.App. 473, 190 S. E.2d 233 (1972). After the third trial, upon appeal by the defendants, it becomes necessary again to order a new trial. We indulge in the hope that the fourth trial will terminate this litigation and let the courts move on to less time worn controversies.

During the selection of the jury to hear the evidence in this case, Mr. Burton, counsel for plaintiffs, asked the prospective jurors the following question: "Is there any member of the jury who feels that his liability insurance rates will go up if he returns a verdict against the defendants in this case?" The trial judge instructed the jurors that they were not to consider the question or any feature of it in this case. At the earliest time available for such motion defendants moved for a mistrial. Their motion was denied and they assign this as error.

Such a question could only be calculated to instill in the minds of the jurors that defendants have adequate liability insurance to respond in damages. The existence of insurance covering a defendant's liability in an action for damages by reason of defendant's negligence is wholly irrelevant to the issues involved. Where reference is made indicating directly that defendant has liability insurance, it is prejudicial, and should not be permitted over defendant's objection thereto. Fincher v. Rhyne, 266 N.C. 64, 145 S.E.2d 316. The North Carolina courts have adhered to the rule that evidence or mention of insurance is not permitted. Fincher v. Rhyne, supra.

New trial.

HEDRICK and BALEY, JJ., concur.